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Originally published Wednesday, January 10, 2007 at 12:00 AM

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Supreme Court refuses to rule on man's 47-year sentence for rape

After Lonnie Lee Burton was convicted in 1994 of raping a 15-year-old Federal Way boy at gunpoint, a King County judge thought the standard...

Seattle Times staff reporter

After Lonnie Lee Burton was convicted in 1994 of raping a 15-year-old Federal Way boy at gunpoint, a King County judge thought the standard range was not harsh enough and sentenced him to 47 years in prison.

The legal fight has continued ever since.

Finally, it appears Burton's last legal door has slammed closed. After agreeing last summer to hear the case, the U.S. Supreme Court decided Tuesday it did not have jurisdiction, effectively ending Burton's efforts to challenge his sentence.

Prosecutors had asked for a 25-year sentence for Burton in the case.

Last year, Burton asked the Supreme Court to rule whether his sentence was constitutional with respect to a 2004 Supreme Court decision that said any factor that extends a sentence beyond the standard range must be either proved to a jury or admitted by the defendant.

It agreed in June to hear the case, but before it could consider the sentencing issue, the high court unanimously decided Tuesday that it did not have the jurisdiction to hear the case after all. The problem was a technical violation of the rules by which federal petitions can be made.

Acting as his own attorney (pro se), Burton in 1998 had filed a petition in federal court arguing against his conviction, and that petition was denied two years later. He then filed a second federal petition in 2000 arguing against his sentence; that claim also was rejected.

What Burton and several judges who dealt with the second federal petition failed to realize was that it was legally invalid because federal rules prohibit more than one such petition from being filed on any one case, which is what the Supreme Court found in its opinion.

"You only get one bite at the apple," said Jeffrey Fisher, a former Seattle attorney who represented Burton and now teaches at Stanford University. "It's disappointing that the court didn't reach the question of unconstitutionality," Fisher said.

The decision is "particularly harsh, because it says this pro-se indigent litigant should have figured out what federal judges could not: the proper procedure for challenging his case. Even if his sentence is unconstitutional, what the court is saying is that there's no possibility for relief."

Fisher said there were no more federal legal avenues for Burton to pursue. His state appeals are likely exhausted as well.

Natalie Singer: 206-464-2704 or nsinger@seattletimes.com

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